The Backward Logic of the Nunes Memo

By
Devin Nunes, chairman of the United States House Permanent Select Committee on Intelligence.

Amid all the lies Donald Trump has told about the Russia scandal, there is one underlying truth: The intelligence community truly fears him and considers him unfit for the presidency. This is not because the intelligence community is traitorous, or left wing, or (as Donald Trump Jr. sneeringly put it) wine-spritzer-drinking elites. It is because the IC had early access to a wide array of terrifying intelligence linking Trump and his orbit to Russia. People who spend their lives protecting their country from foreign threats saw in Trump a candidate who had at some level been compromised by one of them.

Trump and his allies have viewed the causality the other way around. Because the IC distrusts Trump, its investigation of Trump’s connections to Russia is therefore illegitimate. Since his election, Trump has seized upon news of the investigation into his campaign’s ties to Russia as evidence that the investigators cannot be trusted. If they were unbiased, he reasons, they wouldn’t have been investigating Trump in the first place.

The newly released memo by Republican staff follows the tracks of this reasoning. Its central contention, leaked in advance, is that the FBI used the work of a biased source (Christopher Steele, a British intelligence agent with expertise in Russia) to justify surveillance of Carter Page, a Trump campaign adviser. The memo highlights Steele’s opposition to Trump (he “was desperate that Donald Trump not get elected”), along with the beliefs of FBI agents Peter Strzok and Lisa Page, both of whom “demonstrated a clear bias against Trump and in favor of Clinton.”

As a legal matter, as law professor Orin Kerr has explained, there is no merit to the argument that a politically biased source cannot be used to obtain a warrant. Indeed, the FBI used journalism funded by Steve Bannon to investigate Hillary Clinton. In the place of any strong legal claim, the memo substitutes the assumption that intelligence sources who don’t want Trump to be president must be up to no good.

But this treats the effect as the cause. Strzok, as the context of his texts reveals, was a moderate Republican who voted for John Kasich in the GOP primary. Steele was a Brit who had not shown any strong passion for American politics. They developed intense preferences in the 2016 election outcome in large part because they had access to intelligence about Trump and Russia. They did not create this intelligence to support their political beliefs.

Indeed, Carter Page — the former Trump campaign official, the surveillance of whom occupies most of the memo’s attention — came under FBI scrutiny in 2014, after he had passed documents on to Russian spies. Page is the kind of person who would be brought on as a foreign policy adviser only if (a) the campaign was actively seeking out Russian assets, or (b) it was so slipshod it could easily be penetrated by Russian intelligence.

The Nunes memo omits an unknown, but probably large, amount of contextual data about other sources of the warrants to surveil Page. This tracks the whole method of Trump’s defense, which is to begin the story in the middle.

The official Republican justification for the Nunes propaganda offensive is to serve the cause of transparency. There are “legitimate questions about whether an American’s civil liberties were violated,” House Speaker Paul Ryan told reporters. “There may have been malfeasance at the FBI by certain individuals, so it’s our job in conducting transparent oversight … to get to the bottom of that.”

But Republicans blocked the publication of a Democratic-authored memo rebutting the claims in the Republican one. Instead, they leaked the Nunes memo first to sympathetic conservative reporters, who could shape its narrative. (One problem critics of the Nunes memo have is that revealing other sources of intelligence that were used to support the application to surveil Carter Page might risk blowing up the FBI’s sources.) They can force Democrats and the FBI to choose between letting the accusation against the Bureau stand or risk its secrets.

Ryan’s enthusiasm for transparency has not extended to the long-standing practice of releasing presidential tax returns, which he has blocked from public view for more than a year. Apparently, the public is entitled to full transparency into FBI counterintelligence sourcing, but has no need to know who is paying the president.

The stench of bad faith covers the entire effort. Trump has not even bothered to conceal his belief that the memo gives him an excuse to replace Rod Rosenstein, Robert Mueller’s supervisor, with a more pliant figure. Trump believes to his core that he is entitled to federal law enforcement run by personal loyalists, and that any investigation of him is per se evidence of disqualifying bias. Nunes’s memo places the House Republicans foursquare behind that grotesquely authoritarian belief.

The Backward Logic of the Nunes Memo